Current rape laws hearken back to those used hundreds of years ago
because they depend on the victim's physical resistance to determine
whether a rape happened, according to law professor Anne
Coughlin, who explained at a Jan. 26 talk that state rape laws
are affected by “old narratives” of how women should act. Although
Coughlin supported the idea of a “yes-means-yes” or “no-means-no” rule
to decide rape cases, in the case of basketball star Kobe Bryant, who
is facing sexual assault charges in Colorado, embedded racism or sexism
might affect jurors who may be deciding the case based solely on conflicting
testimony. Coughlin discussed the Bryant case and the complexities
of rape law in a packed classroom at an event co-sponsored by the American
Constitution Society, Virginia
Law Women, and the Rape
Crisis Advocacy Project.

“I always approach [the case] by saying ‘I don't know what happened,'” Coughlin
said. But in regards to rape cases, “what kinds of rules would you
want to adopt—rules that would be both in the male's interest, and
the female's interest? . . . How do we break the he-said, she-said
logjam?”

In the Bryant case, sexism—such as viewing the woman as a gold-digger,
or saying she went to his room knowing what would happen—and racism
could bear on the results of the case, she said. “African-American
males . . . have been identified and construed as the typical rapist.” During
slavery and long after, women's claims of rape went unquestioned and
alleged rapists who were black would be summarily executed. African-American
females during the same period were “not viewed as credible rape complainants” because
white men could rape them without legal consequences.

“These kinds of attitudes may all come together in the Kobe Bryant
case,” she said. Coughlin questioned if Bryant were accused of drunk
driving or robbery, “would there be this instant condemnation of the
victim?. . . There's something about this crime and this unique charge
that makes it so polarizing.”

We can understand this polarization, Coughlin said, by examining rape
laws as a continuation of the regulation of sexuality. For centuries,
possibly longer, all sex inside marriage was considered legal, while
extra-marital sex, whether adultery or fornication, was illegal. One
way a woman could prove she was not guilty of adultery, for example,
was to show she was raped. The only way a woman could prove she did
not consent to sex was by showing evidence of her physical resistance,
such as bruising.

“Today in many states, reasonable resistance is required,” she said. “Is
that the defense we should live with today?”

Contemporary definitions of rape in America come more from the Victorian
period than from the Puritans, Coughlin added. Victorians expected
their women to fight to the utmost to protect their chastity and honor.
Women were considered so fragile that if they were raped, they might
go insane.

Current rape laws are under a lot of pressure and are changing, she
said. Many states now have different degrees of rape, and capital punishment
for rape is no longer an option, since it may have given some victims
pause when coming forward to report acquaintance rape cases. Unlike
other criminal law statutes, “people are looking to [rape laws] for
guidance, and it's having a very powerful effect on the lives of women.”

Coughlin explained that in some military schools, training manuals
hint that the military considers “no-means-no” or having sex with a
drunk woman to be rape, but when such victims come forward, they find
that actual military laws contradict their training. One student told
Coughlin that “women in [Coughlin's] generation had it better” because
then women were taught that they shouldn't be surprised when things
get out of hand as a result of drinking, or dressing provocatively.
At the time, “that was our problem, it was not a rape,” Coughlin said. “And
it wasn't—it wasn't in the law and it wasn't in our heads.”

Today women hear they can go where they want, dress the way you want,
and that no means no. When they find out the law contradicts these
standards in many cases, it causes “huge psychological damage to the
women.”

Coughlin said she would like to “end some of the cognitive dissonance” caused
in part by the contradiction between the arguments of radical feminists
and state laws.

Double standards and biological realities can complicate the picture
as well, Coughlin added. Females and males are not “similarly situated” in
regards to their sexuality, mainly because women can get pregnant from
sex. “That's a big deal—that's a really big deal,” Coughlin emphasized,
and women may have incentives to control sex as a result. Furthermore, “sex
is stigmatizing for women in a way that it is not for men. . . . The
way it's portrayed in the media, if a young boy had sex, someone did
him a favor” whereas in the case of a young woman, she's considered
to have lost something.

Coughlin recalled arguing with her dad about the Bryant case when
he said the alleged victim probably wasn't raped because she went to
his room willingly. “Maybe she's just doing her job,” Coughlin told
him at the time, telling the audience, “you can suddenly see how the
risk of sexual assault can actually constrain women's job opportunities.”

Coughlin advocated allowing rape charges to be decided on a “yes-means-yes” or “no-means-no” prosecution,
rather than solely through showing physical resistance. Colorado's
law is formulated in a similar fashion; consent is defined by a “spirit
of cooperation” that isn't based on the kind of relationship the victim
and alleged rapist had.

“What we're going to end up with in rape law is a normative vision
for male and female,” and for what constitutes positive sex, she said.

Coughlin questioned whether physical resistance should be a substantive
requirement, noting that women are often told “physical resistance
could incite greater violence.”

“Why not just leave it to the jury?” Coughlin asked the audience.
She answered her own question: “Racism may enter into it in ways that
are very deeply predictable.”• Reported by M. Wood